Charles Francis Adams to John Russell, 1st Earl Russell, May 20, 1865
Mr. Adams to Earl Russell.
My Lord: I have had the honor to receive your note of the 4th instant, in reply to mine of the 7th of last month. I have already taken the earliest opportunity to transmit a copy to my government. If it should not so happen that the course of events dispose of the matter beforehand, I shall probably receive instructions which will enable me to give the information which your lordship appears to desire.
Pending the receipt of these, however, I must ask Pardon for observing that in the notice which you have been pleased to take of the arguments submitted in my note, you have so far extended the field of discussion as to make it my duty to proceed in it still further.
And here I would beg leave to remark that if I am to judge of the general statement made of my position by the abstract of it presented to me by your lordship, I must have very grievously failed in offering the logical sequence of my propositions as distinctly as I had desired to do. This will render necessary another effort to place them before you in the following brief recapitulation:
It was my wish to maintain,
1. That the act of recognition by her Majesty’s government of insurgents as belligerents on the high seas before they had a single vessel afloat, was precipitate and unprecedented.
2.That it had the effect of creating these parties belligerents after the recognition, instead of merely acknowledging an existing fact.
3.That this creation has been since effected exclusively from the ports of her Majesty’s kingdom and its dependencies, with the aid and co-operation of her Majesty’s subjects.
4.That during the whole course of the struggle in America, of nearly four years in duration, there has been no appearance of the insurgents as a belligerent on the ocean, excepting in the shape of British vessels, constructed, equipped, supplied, manned, and armed in British ports.
5.That during the same period it has been the constant and persistent endeavor of mygovernment to remonstrate in every possible form against this abuse of the neutrality of this kingdom, and to call upon her Majesty’s government to exercise the necessary powers to put an effective stop to it.
6.That, although the desire of her Majesty’s ministers to exert themselves in the suppression of these abuses is freely acknowledged, the efforts’ which they made proved in a great degree powerless, from the inefficiency of the law on which they relied, and from their alsolute refusal, when solicited, to procure additional powers to attain the object.
7.That by reason of the failure to check this flagrant abuse of neutrality, the issue from British ports of a number of British vessels, with the aid of the recognition of their belligerent character in all the ports of her Majesty’s dependencies around the globe, has resulted in the burning and destroying on the ocean a large number of merchant vessels and a very large amount of property belonging to the people of the United States.
8.That in addition to this direct injury, the action of these British-built, manned, and armed vessels has had the indirect effect of driving from the sea a large portion of the commercial marine of the United States, and to a corresponding extent enlarging that of Great Britain, thus enabling one portion of the British people to derive an unjust advantage from the wrong committed on a friendly nation by another portion.
9.That the injuries thus received by a country which has meanwhile sedulously endeavored to perform all its obligations, owing to the imperfection of the legal means at hand to prevent them, as well as the unwillingness to seek for more stringent powers, are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification.
In making this recapitulation it is no part of my design to go over any part of the reasoning which has already been exhausted in the correspondence which I have had the honor heretofore to hold with your lordship. I shall endeavor to confine myself to such points as may have been raised by the new matter embodied in the note to which I now have the honor to reply.
With regard to my first proposition, I have ventured to affirm that the recognition of the insurgents as belligerents on the 13th of May was precipitate and unprecedented. That it was precipitate is clear from the fact that not a single vessel entitled to the character was at that moment afloat on the ocean, and that even on the land the war itself had barely commenced in the bloodless capture of Fort Sumter. That it was unprecedented I must infer that your lordship does not design to dispute, since it appeals that you have not availed yourself of my invitation to furnish me with any examples.
Nevertheless I have endeavored, so far as I was able myself, to investigate the matter, in order that I might be fully satisfied in regard to the solidity of the reasons which your lordship has done me the favor to offer for so suddenly taking this step. I have found in history an abundance of instances of insurrection, [either temporarily or ultimately successful; in most of them there was much more of necessity pressing upon neutral powers for deciding the points to which your lordship has referred in your note; but I have failed to discover a single occasion upon which any of the powers made a decision in anticipation of a case of immediate necessity presenting itself to their attention.
In this connexion I may, perhaps, be pardoned for reminding your lordship of the circumstances connected with the breaking out of the revolution in the British colonies in America. It could not then be said that cruisers and merchant vessels did not at once swarm on the ocean. Neither was the other contingency absent of the decision of her Majesty’s government to close some ports and to blockade others. Yet I do not perceive that France, however well inclined to do so, did actually take a single step to declare, by proclamation, these insurgents as belligerents at any time. The course which it did take, the same which I find to have been usual, was to await the arrival of an insurgent vessel in her ports. When that event did happen a decision was made. It was received as belonging to a belligerent The same course was likewise taken in Holland. But I must beg leave to remind your lordship that even this quiet proceeding was instantly denounced by his Majesty’s government in both cases as a wrong demanding reparation, and was made one of several grounds for which, in the end, Great Britain made war successively against each nation.
But the immediate recognition of the insurgents by a proclamation was not the only unprecedented proceeding resorted to by her Majesty’s government to create a status which had no actual existence. In advance of that step, it now appears that measures were taken and overtures were made to effect a species of diplomatic negotiation with the so-called authorities at Richmond, for the purpose of gaining their adhesion to the four points of the celebrated treaty of 1856. Considering that the party applied to had not then, and has not at any moment since, ever been able to boast of sailing a single vessel of its own construction, equipment, and manning, this might very naturally have been construed by it as equivalent to offering to create for it a status in the ports of the proposing party, applying in advance of any idea of profiting by such a privilege. I do not intend to affirm that her Majesty’s government, in taking this extraordinary step, had any design to hold forth an invitation. On the contrary, I disclaim any such idea. But it must be obvious to your lordship that some responsibility is often incurred for the injurious consequences naturally flowing from human action, even though there may not be the presence of evil intention. From the evidence already before the public, it does not admit of a doubt that these proceedings, taken together, did have the effect of encouraging the insurgents to a degree which led to the prosecution of their subsequent audacious policy.
The insurgents ultimately became a belligerent on the ocean solely by reason of the facilities furnished them in her Majesty’s ports. The fact appears to me to be indisputable. For down to the close of the war, with the exception mentioned in my former note, of two passenger steamers stolen from the citizens of New York, not a single effective vessel of theirs has been seen on the ocean, excepting the six or seven which have been wholly supplied in and from this kingdom. Of the preparation of these steamers for the purpose indicated, I have endeavored from time to time to furnish your lordship with such evidence as I had it in my power to obtain. For a considerable time I found myself unable to stem the combined effect of the secret sympathy of her Majesty’s officers in the port of Liverpool, and of your lordship’s very natural incredulity, based on their reports, in procuring more than formal attention to my representations. Thus it was that the gunboat Oreto got away, and soon after became the armed privateer the Florida. All the statements I had the honor to submit proved true to the letter, but nevertheless the facility with which the evasion had been accomplished furnished the strongest encouragement to the subsequent great extension of the field of operations.
It was at that moment that a deliberate policy was adopted by the insurgents, under which a base was made in this kingdom for all the extensive warlike operations since conducted by them. The officers were then established, and all the ramifications of a bureau regularly organized.
The next example was that of gunboat No. 290, afterwards well known as the cruiser the Alabama. I refer to this case once more only because it has been particularly referred to by your lordship. I do so for the purpose of expressing my dissent from the statement made in your note in regard to certain important particulars. Your lordship is pleased to state that the papers affording evidence of a design to equip this ship for the confederate service were furnished to you on the 22d and on the 24th of July. This is certainly true. But your lordship will be kind enough to remember that my first note, giving information as to the character of that vessel, was dated on the 23d of June—that is, one month preceding. On the 4th of July, the commissioners of her Majesty’s customs, to whom that representation was referred, made a report admitting the fact that the vessel was certainly built for a ship-of-war, but affirming that the evidence presented of her being intended for the so-called confederate government was not sufficient to justify a detention. The concluding sentence in their letter was in these words. I pray permission to ask your lordship’s particular attention to them:
“We beg to add that the officers at Liverpool will keep a strict watch upon the vessel, and that any further information that may be obtained concerning her will be forthwith reported.”
Here was a distinct pledge on the part of two of her Majesty’s officers that “they would keep a strict watch on this vessel,” which pledge was sent to me with your lordship’s note of the 4th of July, requesting me to obtain such further evidence as might tend to show the destination of the vessel. Considering this as a distinct engagement, sanctioned by her Majesty’s government, to keep faithful watch over that vessel so long as it might be necessary to obtain more evidence as to her character, the precise date of the receipt of that evidence becomes a question of secondary importance. The true question appears to be how that pledge was actually redeemed. This will appear clearly enough in the sequel.
On the 9th of July the consul made a statement to the collector of facts as they had become known to him. He entered into a number of details in respect to the persons engaged in connexion with this vessel, naming individuals with a particularity certainly deserving of some investigation by her Majesty’s officers at Liverpool, if they really meant to satisfy themselves that she ought to be detained. But it does not appear that they considered it their duty to initiate or even to carry on any inquiry. The board of customs contented themselves with a formal reply on the 15th instant, denying that there was sufficient prima facie evidence to justify a seizure of the vessel.
On the other hand, my lord, I must take the liberty to remark, after a calm re-examination of the substance of that letter, that if there was not prima facie evidence enough in it to justify the seizure, there was matter enough in it to make it the bounden duty of her Majesty’s officers to lose no time and omit no effort to obtain the evidence on their own account to verify or to disprove the allegations.
They do not so appear to have read their duty. The consequence was that more time was necessary for me to procure the information which, as officers of the Crown, they admit in their own letter they ought to have procured themselves. I did obtain evidence, though the process naturally consumed time. That evidence was submitted on the 21st of July by the consul at Liverpool to the collector of that port, and by him referred to the board of customs. The deliberate answer of that body was made on the 23d of July, and it was to the effect that it was not sufficient to justify any steps being taken against the vessel under the law.
Thus far it appears that although her Majesty’s officers had pledged the government to keep faithful watch over the vessel and report any further information they might obtain, no one of them seems to have been disposed to pay the smallest attention to any representations or any evidence offered by myself or any agent of the United States, even so far as to stimulate his own action in any way whatever. A change now took place, to the nature of which I beg most particularly to call your lordship’s attention.
On the next day after this decision of the customs board I had the honor of sending to your lordship copies of six of the very same depositions which had been already sent to them. Whether these would by themselves have met with a better fate I cannot venture to pronounce. But on the 24th I transmitted two additional ones, to which was appended a professional opinion by a British subject, distinguished as a Queen’s counsel, which had been given to me after a careful examination of all these papers. It was to the following effect:
“1. That if the collector of Liverpool did not detain the vessel he would incur a heavy responsibility, of which the board of customs must take their share.
“2. That if the vessel was allowed to escape, it deserved consideration whether the federal government would not have serious grounds of remonstrance.”
These were ominous words. They laid the responsibility distinctly upon the very parties who had given the original pledge of vigilance and attention. And yet during the very interval in which her Majesty’s government was deliberating upon their purport, the vessel was permitted to escape. Neither did this event occur without most explicit warning of the danger having been given by a person acting on behalf of the United States. As early as the 23d of July, six day before that escape, Mr. Squarry, the solicitor employed in the case, addressed a note to the secretary of the customs board, warning them most distinctly of the fact that the vessel was ready for sea; had fifty men on board, and could sail at any time. On the 26th he wrote another letter, repeating the warning once more; yet in spite of the promise to keep a strict watch, and in spite of these repeated warnings, the vessel was permitted to steam out of Liverpool just as if no cause of suspicion of her destination had ever been ex cited. And, as if to crown the extraordinary character of the transaction, after receiving from Mr. Squarry notice on the 29th that the vessel was actually gone, it was not until the 31st that telegrams were issued to Liverpool ordering her detention. I must respectfully represent to your lordship that this proceeding, so far from appearing to do any justice to the demand of the United States, looks almost as if it were intended as a positive insult.
It is true that on the same day telegrams ordering a detention were sent to Cork; likewise, on the 1st of August, to Beaumaris and Holyhead; and on the 2d of August a letter was sent to the collector at Cork to the same effect. For all practical purposes, they might have been sent just as well at this moment that I am addressing these lines to your lordship. It further appears that instructions were sent to the governor of the Bahamas in case the vessel should visit Nassau. The vessel did not visit that place; but the next time she visited a port within her Majesty’s dominions was after she had entered upon her career of depredation, and then, instead of being detained, she was politely received and acknowledged as the vessel of a bona fide belligerent.
It now appears that from the day when, by the flagrant negligence of her Majesty’s board of customs, this vessel admitted to be intended for war purposes was suffered to depart from the port of Liverpool, down to the hour of her destruction by the United States steamer Kearsarge off the coast of France, she came again and again into the ports within her Majesty’s jurisdiction; and instead of being treated as her Majesty’s government directed if she should go to Nassau, she was everywhere hailed with joy and treated with hospitality as a legitimate cruiser.
On behalf of my government I respectfully protest against the whole of this proceeding as contrary to recognized principles of international law. What the obligation of her Majesty’s government really was in this instance is so clearly laid down by a distinguished writer, notoriously disposed never to exaggerate the duties nor to undervalue the privileges of neutrals, that I will ask the liberty to lay before you his very words:
“Le fait de construire un bâtiment de guerre pour le compte d’un belligérant, ou de l’armer dans les Etats neutres, est une violation du territoire. Toutes les prises faites par un bâtiment de cette nature sont illégitimes, en quelque lieu qu’elles aient été faites. Le Souverain offencé a le droit de e’en emparer, même de force, si elles sont amenées dans ses ports, et d’en réclamer la restitution lorsqu’elles sont, comme cela arrive en général, conduites dans les ports hors de sa jurisdiction. Il peut également réclamer le désarmement du bâtiment illégalement armé sur son territoire, et même le détenir, s’il entre dans quelque lieu soumis à sa souveraineté, jusqu’à ce qu’il ait été désarmé.”
It is, then, with undoubting confidence in the justice of the reasoning here presented that I take the liberty to reaffirm the validity of the claims of my government for all the damage done by this vessel during her career, and ask reparation therefor.
With respect to the extract from the letter of Mr. Seward to me of the 13th August, 1863, (actually written in 1862, ) by a clerical error in your lordship’s note that for a time misled me, which you are pleased to quote as a proof that he was perfectly satisfied with the proceedings, I can only remark that the very date itself sufficiently proves that his language never could have been intended to apply to the extent to which your lordship appears to suppose, for at that moment he had been but very partially put in possession of all the facts connected with the case. His remark obviously pointed only to the disposition of your lordship, which has never been brought into question. What he has thought of the whole case since, what instructions have been given to me in consequence, are matters too well known to your lordship to render further explanation necessary.
Passing from this point to the more general question between the two countries, I proceed to the task of considering an argument of your lordship of a widely different description; this is one drawn entirely from the authority supplied by the previous practice of the government which I have the honor to represent. You cite this as an example to sustain the position taken by her Majesty’s government against the present claim. It is urged that, in at least two instances cited, where similar claims were presented by the representatives of foreign powers to the United States, they were replied to with substantially the same reasoning now repeated by her Majesty’s government. These are the cases of Spain and Portugal, the com merce of which countries had suffered from depredation on the ocean committed by vessels built, armed, manned, and equipped by citizens of the United States, and despatched from their ports.
The first remark that I would pray permission to submit in connexion with this view of the subject is this: That even if it were true that the government of the United States had, half a century since, refused to recognize the just claims of other powers for damages done, by reason of their omission to prevent the abuse of their neutral ports to the commerce of those powers, it could in no degree change the nature of any subsequent omission or neglect committed by other powers at this day. It is a principle of morals too thoroughly known to your lordship to require my dwelling upon it for a moment, that the wrong-doing of one party cannot be cited in justification of a repetition of the act by another. Surely if the United States government had ventured upon declaring what was once known as a paper blockade of the southern coast, her Majesty’s government would not have been content to be told that such was the acknowledged practice of Great Britain many years ago. Neither would it have been better satisfied, if the United States had resorted to the press-gangs in the outset of the war to fill their ships with British subjects forced against their will to fight their own countrymen in the Alabamas, and Floridas, and Shenandoahs, and Tallahass.ees,.depredating on the ocean, to be told, in answer to their remonstrances, that just such was the treatment Americans experienced at the hands of Great Britain prior to the war of 1812.
But conclusive as this reasoning may be held to be to annul at once all the authority that springs from mere precedent as its source, I am by no means disposed to resort to it in the cases cited by your lordship. They are very familiar to me, and to my view are in themselves so far from furnishing strength to the positions which have been taken by your lordship, that they bear directly the contrary way. The parallel attempted to be drawn is, in lother words, wholly defective and inapplicable.
In regard to the injuries inflicted by citizens of the United States upon the commerce of Spain, the extract which your lordship is pleased to quote from the official note of the representative of the latter country, Don Luis de Onis, certainly does show that such were actually committed. I am not aware that the government of the United States ever denied the fact. The expedition fitted out by General Miranda against a certain portion of the coast of South America, then under Spanish rule, was unquestionably a violation of the neutrality of the country which ought to have been prevented. All these cases constituted claims which the Spanish government held against the United States, very much in the same way that the claims for damage done by the Alabama, &c., issued from British ports, are now held by the United States. On the other hand, however, it should be observed that out of the wars of Europe there had grown up a much larger amount of claims on behalf of the people of the United States for injuries done to their commerce by illegal seizure and condemnation of their vessels in the ports of Spain. In progress of time the necessity became urgent on both sides to enter into a deliberate examination of the merits of these respective claims, and, if possible, to arrive at fair terms of settlement. A plan of a treaty was proposed, embracing all that was regarded as fairly to be brought forward on the two sides. It was during this process that Don Luis de Onis the very same person whom your lordship has been pleased to cite as making the complaint, himself, on the 24th of October, 1818, presented a project of six articles, intended to include every one of those objects.
There can be no doubt that this proposal was intended to cover the very claim which was presented in the previous note of January, 1817, an extract from which your lordship has done me the honor to quote. If your lordship should have any inclination to draw it into question, I shall only have to refer you to a second projet presented by the same individual on the 16th of November, 1818, in which occur these words:
“My fourth proposal to your government has for its object the renunciation by both governments and nations of all claims for spoliations respectively suffered by either of the two powers or their subjects until the signing of the treaty.”
And as voucher for what was meant, there is attached to this paper a document containing three separate lists: one, of the names of the Spanish vessels taken; another, of the privateers fitted out in the American ports, by which they were taken; and a third, of the property taken in those vessels. In other words, these constitute the very claims for injuries complained of in the note of M. Onis, to which your lordship has been pleased to refer.
To this proposition, so presented by M. Onis, the government of the United States raised no objection. It was, therefore, so far as it went, admitted as an item pro tanto on the side of Spain in the settlement of the opposite questions between the two nations. As such, it was incorporated into the projet of a treaty, drawn up by Don Luis de Onis, for the consideration of the United States government, and delivered on the 9th of February, 1819, In this paper it makes a portion of the tenth article. The renunciation of his Majesty was made to extend to all injuries caused by the expedition of Miranda, fitted out and equipped at New York, and “to ali claims of subjects of his Catholic Majesty upon the government of the United States, in which the interposition of his Catholic Majesty’s government has been solicited before the date of this treaty, and since the date of the convention of 1802, or which may have been made to the department of foreign affairs of his Majesty, or to his minister in the United States.”
It is not to be supposed for a moment that in making this voluntary offer the Spanish government did not expect to gain for it a just equivalent in settling the other and less favorable terms of the treaty.
This offer so made was accepted by Mr. Adams for the United States, and incorporated in his counter projet offered to Don Luis de Onis on the 13th of February, 1819.
It therefore now stands totidem verbis as a part of the treaty signed by the representatives of the two countries on the 22d of February of that year.
All the papers from which these extracts are taken have been long before the world. I trust I may therefore be pardoned if I express no small astonishment that your lordship should have fallen into the error of affirming in the note which I have had the honor to receive that “it does not appear that any compensation was ever made for any of these seizures.”
I now ask leave to proceed to the consideration of the other case referred to in your lordship’s note, the claim of Portugal upon the United States for similar injuries to those complained of on behalf of Spain. I am the more disposed to approach the subject that, unlike the other case, it is new in the correspondence which it has been my duty to hold with your lordship, and that it gives me an opportunity to correct some misapprehensions which appear to exist as to its true character and bearing on the present discussion.
The extracts from various public papers of the government of the United States with which your lordship has favored me sufficiently establish the fact as stated, to wit:
“That the revolutionary movement in South America excited the sympathy of the people of the United States.”
Your lordship is pleased here to apply the parallel so far as to admit that in this kingdom there was similar sympathy with “the people of the southern States” in what you describe as “their endeavors to give these States an independent position in the world.” This was an unfortunate illusion as to the true objects of that struggle of which I have been aware, but which I have never ceased to regret.
Yet I would respectfully call the attention of your lordship to the circumstance, in connexion with this supposed parallel, that notwithstanding the sympathy of the people of the United States with South America, and notwithstanding that the insurgents did possess both open ports and abundant facilities for cruising on the ocean, the government of the United States did not herald their movement by a prompt declaration recognizing these people as a belligerent power as against Spain.
So far was this from being true, that no sooner was it known that movements were set on foot to make a few of the ports of the United States a base for the operations of the insurgents, aided by citizens of the country, than orders were given to the proper officers of the government to apply the whole power of the existing laws to prevent it. In proof of this assertion I pray permission to submit the reports of the prosecuting attorneys for the two districts in which the offences were most committed. Copies of these papers will be found appended to this note. They will show that seven different individuals, citizens of Spanish America, engaged in these operations against the neutrality of the country, were subjected to trial for their offences in the courts. I would here beg leave to interpose the remark that, so far as I know, in spite of all the evidence which I have presented to your lordship as to the complicity of leading insurgents of the United States residing in this kingdom in the violations of neutrality here committed, not a single prosecution has ever been attempted by her Majesty’s government. They will also show that the only limit to the effort of the government to punish the parties concerned was the inefficacy of thè provisions of the law passed in 1794. It was this difficulty which soon forced itself upon the attention of the President.
It is here that I beg leave to take up the case of Portugal, and to ask attention to those particular points in which the action of the United States in this case differs most materially from that of her Majesty’s government, with which it has been attempted to make a parallel.
On the 20th of December, M. J. Correa de Serra, the diplomatic representative of Portugal, at Washington, addressed a note to Mr. Monroe, then the Secretary of State, presenting the particulars of a strong case of violation of the law which had just happened in Baltimore. He proceeded frankly to acquit the government of any want of disposition to punish the offence, and to mention the obstacle, which he designated to be an imperfection of the statute law.
I pray your lordship’s permission to cite the passage which explains the nature of the request he made in consequence:
“I apply; therefore, to this government in the present instance not to raise altercations or to require satisfaction, which the Constitution of the United States has not, perhaps, enabled them to give, because I know that the supreme executive of this nation, all-powerful when supported by law, is constitutionally inactive when unsupported by it. What I solicit of him is the proposition to Congress of such provisions by law as will prevent such attempts for the future. I am persuaded that my magnanimous sovereign will receive a more dignified satisfaction, and worthier of his high character, by the enactment of such laws by the United States which, insuring the respect due to his flag for the future, would show their regard for his Majesty, than in the punishment of a few obscure offenders (even if attainable) who, disowned as they are by the United States, no doubt, if they take any unwarrantable liberty with the property of his Majesty’s subjects, meet the fate every honest mind wishes to them, and serve as examples and warning to those who may in future feel piratical dispositions. I rely on the President’s wisdom, and the wish I am sure he must feel of putting an end to these shameful practices, and he will take the proper measures to have my just requisition fulfilled.”
This was on the 20th December. Only six days elapsed after the reception of this application, when Mr. Madison, then the President, addressed a message to both houses of Congress in the following words:
“It is found that the existing laws have not the efficacy necessary to prevent the violations of the obligations of the United States as a nation at peace towards belligerent parties, and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States.
“With a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force, within the jurisdiction of the United States; or as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments, with the exceptions in such provisions proper for the cases of merchant vessels furnished with the defensive armaments usual on distant and dangerous expeditions, and of a private commerce in military stores permitted by our laws, and which the law of nations does not require the United States to prohibit.”
The precise points which he desired to have incorporated into a statute are specified in a note from the Secretary of State to Mr. Forsyth, chairman of the Committee on Foreign Relations. They are these:
“Having communicated to you verbally the information asked for by your letter of the 1st instant, except so far as it relates to the last inquiry it contains, I have now the honor to state that the provisions necessary to make the laws effectual against fitting out armed ves sels in our ports for the purpose of hostile cruising seem to be:
“1. That they should be laid under bond not to violate the treaties of the United States, or the obligations of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels, subsequent to their departure.
“2. To invest the collectors, or other revenue officers where there are no collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law; the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained. The statute-book contains analogous powers to this above suggested. (See particularly the 11th section of the act of Congress of April 25, 1808. )
“The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracy as a preventive, where there is reason to suspect an intention to commit the offence. They rest upon the general footing of punishing the offence merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after the trial, to the penalty denounced.”
Experience, both in America and in this kingdom, has united to prove that the measure of restraint here pointed out is almost the only effective one which can be resorted to in such cases. Had It been found possible to use it here I am confident that a great portion of the difficulties experienced by her Majesty’s government during the late war would have been avoided.
On the 3d of March, 1817, a temporary law was passed to meet the emergency, which was received by the Portuguese minister with the greatest satisfaction.
On the 8th of March, 1818, the Portuguese envoy addressed a representation to the Secretary of State in regard to the capture of three vessels by one of these illegal cruisers. But it should be particularly noted that these cases appear all to have grown out of depredations committed by a single vessel which had escaped from the United States previous to the date of the enactment of the new statute. The captures themselves took place on the ocean at about the time of its passage.
With the aid of this explanation your lordship will be better able to appreciate the force of the language of Mr. Adams, then the Secretary of State, in his reply to the Portuguese minister, which you have done me the honor to quote in your note. The government had not only literally done all in its power, under existing laws, to prevent these violations of neutrality, but had, at the request of the envoy himself, procured the adoption by Congress of a new and more stringent statute. Surely, under such circumstances, nothing more could reasonably be expected of it.
This seems to have been the opinion of the Portuguese minister himself. So well satisfied was he with the practical operation of this law in checking these enterprises, that, at the moment when it was about to expire by its own limitation of two years, on the 4th of February, 1819, he once more came forward to express his anxiety about losing, it, and addressed an earnest representation to the United States government to secure an extension of the term. The reply was to the effect that it had not only been incorporated into a new and improved form, but was made permanent.
This will appear from the following note of Mr. Adams:
“Sir: In answer to your letter of the 4th instant, I have the honor of informing you that the act of Congress of 3d March, 1817, to which it refers, was repealed by the act of the 20th of April last, entitled ‘An act in addition to the act for the punishment of certain crimes against the United States, and to repeal the acts therein mentioned,’ being the eighth chapter of the laws of the last session. On referring to this last-mentioned statute, which is not of limited duration, you will find that the provisions of the temporary act of 3d March, 1817, are re-enacted by it.”
From all which proceedings it distinctly appears that, although there were some violations of neutrality committed in defiance of every precaution both before and afterwards, yet the position of the United States in regard to every complaint was an impregnable one. It had done everything in its power, not only to execute existing laws, but to provide more stringent and satisfactory enactments to remedy the defects of the old ones.
Had her Majesty’s government in its wisdom decided to do as much as this in the late war, I am not sure that I should have been able to resist the argument drawn from the example your lordship has cited in its defence. But I regret to be obliged to remind you, that so far was this from being the case, it took diametrically the opposite course. At an early period my government, not unaware of the obstacles that were presenting themselves to the effective application of the existing statutes of Great Britain to the offences notoriously committed within this kingdom, directed me to call your lordship’s attention to the expediency of procuring for the government more stringent provisions. I did then venture respectfully to propose to you that some steps should be taken to obtain at least such modifications of the existing enlistment act as might tend to make it a better preventive measure, Your lordship was pleased in the first instance to respond favorably, at least so far as to make the adoption of such amendments conditional upon corresponding and simultaneous action on the part of the United States; but no sooner had I succeeded in obtaining from my government its assent to a consideration of the arrangement, and communicated the result to you, than your lordship will be so good as to recollect that I received for answer that her Majesty’s government had in the interval reconsidered its decision, and had, finally determined to rely upon the existing statutes as quite effective to answer, the desired purpose.
From this survey of the two cases, it must then be obvious, that the parallel which your lordship has attempted is by no means to be regarded as complete; inasmuch as in the one instance everything that was required as security by a foreign power was actually done to please it, whilst in the other everything required was as positively declined. Hence the responsibility for the evil consequences which was lifted by its own action from the one party, seems to have been entailed with renewed force by its refusal to act upon the other.
Your lordship is pleased to observe that you can never admit that the duties of Great Britain towards the United States are to be measured by the losses which the trade and commerce of the United States may have sustained. To which I would ask permission to reply that no such rule was ever desired. The true standard for the measurement would seem to be framed on the basis of the clear obligations themselves, and the losses that spring from the imperfect performance of them.
With regard to the observations of your lordship respecting the seizure by her Majesty’s government of the two steam war-vessels constructed by Mr. Laird, at Liverpool, I have at all times endeavored to, bear my feeble testimony to the earnest desire then manifested to put a stop to that most outrageous of all the attempts that have been made to violate the neutrality of this kingdom. At the same time, however, since your lordship has been pleased to open that subject, it is no more than my duty to observe that the proceeding does not appear to have terminated as, in accordance with her Majesty’s dignity, I am compelled to think it should have doue, in fully upholding the authority of the sovereign power, but rather in a necessity to resort to an indirect mode of escaping the hazard of recourse to the ordinary process of the courts for the protection due to a foreign nation. So far as the claims of the government of the United States are concerned, it matters little by what means the end may ave been reached. At the same time, it is impossible for it not to have been made painfully conscious in the process that the security of the peace of the two nations from one of the most flagrant violations of international obligations ever attempted, should have been left to hang upon a mode of proceeding wholly foreign from the recognized and established law of the land.
The fact of the extraordinary decline of the mercantile navigation of the United States simultaneously with a corresponding increase of that of Great Britain, as shown in the tables appended to my former note, does not appear to be disputed by your lordship; nor yet the other fact, that it sprang from the transfer of vessels from the one side to the other by reason of the ravages committed by armed steamers fitted out from the ports of Great Britain. It is true your lordship is pleased to avoid the natural inference which I have been compelled to draw from this state of things, by explaining the process in another way. You are pleased to affirm it as a fact that “it has been common to transfer American merchant ships, without change of cargo or of crew, nominally to British owners, in order to avoid the higher rates of insurance payable during war.” But in reply to this I would remark, in the first place, that even if this statement be correct to a far greater extent than I should at present be disposed to admit, it is nothing less than a direct fraud on one of the belligerents, which, if it had had native vigor, instead of being an unthrifty offshoot from a purely British stock, would have furnished to it just ground for general retribution upon British commerce, by subjecting it to the most annoying suspicion and severe examination; and in the next, that the very fact of the admitted rise in the rates of insurance on American ships only brings us once more back to look at the original cause of all the trouble, to wit, the fact of the issue of all the depredating vessels from British ports, with British seamen, and with, in all respects but the presence of a few men acting as officers, a purely British character.
Thus it is that whatever may be the line of argument I pursue, I am compelled ever to return to the one conclusion: the nation that recognized a power as a belligerent before it had built a vessel, and became itself the source of all the belligerent character it has ever possessed on the ocean, must be regarded as responsible for all the damage that has ensued from that cause to the commerce of a power with which it was under the most sacred obligations to preserve amity and peace.
There remain a few minor points in your lordship’s note which might have elicited further comments on my part, but for the consideration that the positions taken in regard to them by my government have been already on a former occasion sufficiently set forth. I am therefore reluctant, by further extending this note, to run the risk of trespassing unnecessarily on your lordship’s patience. I trust that, in performing the task to which my sense of duty calls me, I shall not be found to have in any degree transgressed the limits of amicable discussion to which it is the earnest desire of my government that I should ever adhere, and which it is always my own disposition to observe.
I pray, &c.,
Mr. Dick, attorney of the United States for the district of Louisiana, to the Secretary of State.
Attempts to violate the laws by fitting out and arming, and by augmenting the force of vessels, have no doubt been frequent, but certainly in no instance successful, except where conducted under circumstances of concealment that eluded discovery. In every instance where it was known that these illegal acts were attempting, or where it was afterwards discovered that they had been committed, the persons engaged, as far as they were known, have been prosecuted, while the vessels fitted out, or attempted to be fitted out, have been seized and libelled under the act of the 5th of June, 1794; and when captures have been made by vessels thus fitted out and armed, or in which their force was augmented or increased within our waters, where the property taken was brought within our jurisdiction, or even found upon the high seas by our cruisers, and brought in, it has been restored to the original Spanish owners, and in some instances damages awarded against the captors.
An enumeration of the cases in which individuals have been prosecuted for infringing, or attempting to infringe, our neutrality in aid of the governments of New Spain, in which vessels have been seized and libelled, under the actof the 5th June, 1794, together with a list of the vessels and property restored to the original Spanish owners, (confining the whole to the operations of the year commencing March, 1815, and ending February, 1816,) will show more conclusively, perhaps, than anything else can, how totally without foundation are the complaints, and how misplaced are the assertions, of the minister of Spain on this head.
Names of individuals prosecuted in the district court of the United States for the Louisiana district daring the year 1815, for violating, or attempting to violate, the neutrality of the United States, in aid of the government of the United Provinces of New Granada and of the United Provinces of Mexico:
José Alvarez Toledo, Julius Cæsar Amigone, Vincent Gambie, John Robinson, Romain Very, Pierre Lameson, Bernard Bourden.
List of vessels libelled for illegal outfits of the same governments during the same period:
Brig Flora Americana, restored; schooner Presidente, condemned; schooner Petit Melan, condemned; schooner General Bolivar, discontinued; schooner Engenen, alias Indiana, condemned; schooner Two Brothers, restored.
Enumeration of vessels and property brought within the Louisiana district, captured under the flags and by authority of the governments of New Granada and of Mexico, libelled on, the part of the original Spanish owners, and restored upon the ground that the capturing vessels had been fitted out and armed, or had their force augmented within the waters of the United States:
1. Schooner Cometa, restored April, 1815.
2. Schooner Dorada, proceeds restored May 16, 1815; $3,050.
3 Schooner Experimento, restored August 3.
4. The polacca brig De Regla and cargo, proceeds restored December 18, 1815; $19,209 50.
5. Schooner Alerto and cargo, being the proceeds of the capture of about eighteen small vessels, restored December 18, 1815; $62,150 05.
Damages awarded to the original owners against the captors in the two foregoing cases, $55,272 99.
6. Cargo of the schooner Petit Melan, restored February 1, 1816; $2,444 31.
7. Cargo of the schooner Presidente, February 1, 1816; $10,931 15.
8. Schooner Santa Ritor and cargo, restored February 1, 1816; $37,962 94.